ORDER ON MOTION TO SUPPRESS
Joyce A. Wheeler Justice, Superior Court
Pending is Steven Maier's motion to suppress evidence arising out of a statement made by him to a Falmouth Police Officer after the officer determined that he had probable cause to arrest Mr. Maier for operating a motor vehicle while under the influence of intoxicants, Class D, 29-A M.R.S.A. §2411(1-A)(A). Maier alleged at the hearing on the motion to suppress first that the state lacked probable cause to arrest and then failure to administer his Miranda warnings before submitting him to custodial interrogation.
At the hearing on the motion to suppress, the State presented one witness, Officer Robert D. Ryder of the Falmouth Police Department. After considering all of the evidence, this court concludes for the reasons set forth below that the motion to suppress is denied. The Court finds, without any further discussion, that the officer had probable cause to arrest Maier based on his erratic operation of his motor vehicle, red, watery eyes and odor of intoxicating beverage, his admission that he had a couple of drinks with some friends, and his unsatisfactory performance on three field sobriety tests See State v. Webster, 2000 ME 115, ¶ 7, 754 A.2d 976.
Before administering the field sobriety tests, the officer asked Maier to exit his vehicle and to come to the front of the vehicle to perform field sobriety tests where the road was flat. The officer asked Maier how much he had to drink and Maier responded, "three drinks." The officer then administered the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. After administering the three field sobriety tests, Officer Ryder formed an opinion that Maier was impaired. In forming that opinion, he considered Maier's operation of his motor vehicle, his unsuccessful completion of the field sobriety tests and the other factors leading up to the administration of the field sobriety test. Because he considered that Maier may be fifty pounds overweight and he recalled that some consideration was to be given to people overweight by this amount, the officer asked Maier how he would rank himself on a 1-10 scale of impairment with 10 being falling down drunk. When Maier answered, "8", the officer, who was surprised by the answer, asked him once again and got the same answer. The officer offered Maier a preliminary breath test, again because of his weight, and then placed Maier in handcuffs and took him to the Cumberland County Jail. The officer did not at any time advise Maier of his Miranda rights. Maier seeks to suppress his statement that he ranked himself an "8" on an impairment scale with 10 being falling down drunk.
Miranda and Voluntariness of Statements Before Arrest
The burden is on the State to prove beyond a reasonable doubt that Maier's statement was voluntary. See State v. Sawyer, 2001 ME 88, ¶ 8, 772 A.2d 1173. The court must consider the totality of the circumstances in determining whether a confession is voluntary. Id. at ¶ 7. "In order to find a statement voluntary, it must first be established that it is the result of defendant's exercise of his own free will and rational intellect." Id. at ¶ 8 (citation omitted). Factors to consider in doing this analysis include the following: details of the interrogation; duration of the interrogation; location of the interrogation; whether interrogation was custodial; recitation of the Miranda warnings; the number of officers involved; the persistence of the officers; police trickery; any threats, promises or inducements made; and the defendant's age, physical and mental health, emotional stability and conduct. Id. at ¶ 9.
Scrutinizing all of the circumstances surrounding the police questioning before Maier was arrested, there is no evidence of any police trickery, threats, promises or inducements. Maier appeared to be alert and rational, and he could respond to questions with appropriate answers. There was no indication of any impairment of Maier's physical or mental condition, except as he performed on the field sobriety tests. The officer was speaking with Maier in a conversational manner about how much he had to drink, with the intent of giving Maier some additional consideration because of his weight. The officer's question and Maier's answer were voluntary under all of the circumstances.
Maier contends that the failure to advise him of his rights under Miranda requires that the court suppress any statements he made after the determination to arrest Maier was made by the officer. It is well-settled law that the police must give a Miranda warning to a person subject to custodial interrogation in order for the statements made in the course of the interrogation to be admissible against that person. "A suspect who is not formally arrested is subjected to a custodial interrogation if the suspect's freedom of movement has been restrained 'to the degree associated with a formal arrest.'" State v. Lockhart, 2003 ME 108, ¶ 17, 830 A.2d 433, 441, quoting State v. Higgins, 2002 ME 77, ¶ 12 796 A.2d 50, 54.
When Maier made the statement, he was not yet under arrest although the officer had already decided to arrest him, nor was he subjected to custodial interrogation. He was not handcuffed, nor left in the presence of the second officer. He was not under arrest until Officer Ryder placed the handcuffs on Maier and took him to the County Jail. Since Maier was not subject to custodial interrogation before his arrest, the statement concerning his being an "8" is not suppressed.
Once Maier was arrested he was in custody and Miranda warnings were required before being questioned. However, there is no evidence of any custodial interrogation after Maier's arrest. The question about how much he had to drink was asked before Ryder was handcuffed and placed under arrest.
Maier argues that he was in custody at the time the questioned was asked because Officer Ryder admitted that he would have arrested him even if his answer had been a "0" because of his unsuccessful performance on the field sobriety tests. Maier argues Ryder went to ...